WIQAR AHMAD, J.- Instant revision petition is directed against judgment and decree of learned Additional District Judge-I, Charsadda, dated 23.12.2017 whereby while dismissing appeal of petitioners, judgment and order of the learned Civil Judge-II, Charsadda, dated 30.1.2017, was maintained.
2. Resume of facts leading to filing of instant revision petition are that petitioners filed a suit for declaration, (permanent injunction and recovery in alternative) to the effect that he was owner in possession of suit property measuring 28 Marlas out of 4 Kanals bearing Khasra No.583/372 on the basis of sale deed dated 18.1.2010 and subsequent mutation No.1887 dated 27.4.2010 attested by defendant No.2 in favour of defendant No.1 was wrong, illegal and based on fraud and collusion, hence ineffective upon his rights. It is further averred in the plaint that sale consideration of Rs.5,60,000/- has already been paid to defendant No.2 in presence of marginal witnesses of the deed, therefore, subsequent mutation in favour of defendant No.1 is illegal and requires to be cancelled and revenue record be corrected accordingly. Plaintiff further prayed for permanent injunction restraining defendants from interference in ownership ofplaintiff. In alternative, plaintiff also sought recovery of sale consideration of Rs.5,60,000/- along with cost of construction on the suit property. In response to summons, the defendants contested the suit by filing their written statement wherein they refuted the stance of plaintiffs by stating that sale deed relied upon by plaintiff was forged and bogus. On the divergent pleadings of the parties, the learned trial court framed 13 issues where after both parties were directed to produce evidence in support of their respective stances. The learned Civil Court, after going through evidence of the parties and hearing arguments of their counsel, decreed the suit, vide judgment and decree dated 30.1.2017. Feeling aggrieved, defendants filed appeal before learned Additional District Judge-I, Charsadda, which was dismissed on 23.12.2017. Now, defendants/ petitioners have filed instant revision petition with following prayer: - "It is therefore, very humbly prayed that on acceptance of this revision, the judgment passed by the Appellate Court dated 23.12.2017 read with the initial judgment of Civil Judge dated 30.1.2017 may please be set at knot, dismissed and set aside and consequent to that the suit filed by the plaintiff(respondents in appeal and in this revision petition) may be dismissed with cost throughout."
3. Arguments heard and record perused.
4. Perusal of record reveals that learned appellate Court had found, on reappraisal of evidence in appeal, that plaintiff/respondents had succeeded in proving the sale deed. Through sale deed dated 13.1.2010 respondent No.1 had purchased property in dispute from respondent No.2 Mst.
Janatul Mawa. This was an unregistered deed which was brought in evidence as Ex.PW.1/1. Factum of its execution had been accepted by learned two Courts below for the right reasons. Its legal effect shall however be discussed later on. Predecessor-in-interest of petitioners had also purchased same property from respondent No.2 through mutation No.1887, attested on 27.4.2010 in Khasra No.583/372 in Moza Gul Abad, Charsadda. It had also remained admitted during course of evidence that property in dispute have been running in physical possession of respondent No.1 .
This Court has got no reason to differ with concurrent findings of two Courts below in this respect.
One aspect of the matter requires reconsideration Le, whether a suit for declaration could be decreed under Section 42 of the Specific Relief Act, on the basis of an agreement to sell? Said question shall also be addressed in later part of this judgment. So far as evidence in respect of the above mentioned findings is concerned, it is also discussed here briefly:-
5. In order to prove his case, plaintiff' produced Haji Murad All (PW.1), scribe of the sale deed dated 18.1.2010, (Ex.PW. 1/1) who stated that respondent No.2 (Mst. Jannatul Mawa) had herself came to the District Court and thumb impressed the sale deed in his presence. This witness further stated that in his presence, the marginal witnesses had also signed/thumb impressed the sale deedPW.2 Rahat Shah & PW 3 Nemat Gul are marginal witnesses of the sale deed dated 18.1.2010. Both witnesses had confirmed their signatures on the sale deed and further stated that in their presence, Mst.Jannatul Mawa had received sale consideration of Rs.560000/- and that the possession of suit property was with plaintiff: Plaintiff' himself appeared as PW.4 who had given same narrations as given in the plaint. On defendants' side, DW.1, Patwari Halqa, appeared who had brought on record mutation No.1887, dated 27.4.2010 (Ex.DW.1/2). DW.2 is ADK Fakhar ul Hassan who had produced Register relating to Mutation No.1887, dated 27.4.2010. Defendant Jannatul Mawa appeared as DW.3 who had denied to have sold out the suit property to plaintiff through sale deed dated 18.1.2010 and stated that she had sold out same property to defendant/respondent No.1 for a sale consideration of Rs.10 lac and confirmed the factum of attestation of mutation No.1887, dated 27.4.2010. DW.4 Muhammad Shaheen is son of Mst. Jannatul Mawa who had contradicted the stance of plaint qua sale of property to latter. Muqarrab Khan appeared as DW.5 who had stated that despite being owner of suit property on the basis of suit Mutation No.1887, dated 27.4.2010, possession of suit property was with plaintiff This witness had also admitted construction made by plaint over suit property.
6. When the two Courts below have concluded on the basis of such evidence that the agreement to sell Ex.PW.1/1 had been proved on record then this Court was having no reason to differ with such findings of two Courts below and that also while exercising revisional jurisdiction of this Court. The mutation had admittedly been executed by Mst. Jannat-ul-Mawa but same was subsequent to the sale deed.
7. The important question that whether a suit for declaration of title might have been decreed on the basis of the agreement to sell have not been discussed by two Courts below but being question of law this Court may discuss and decide such question as a revisional Court. Instead of remanding case to learned Court below, such question is being taken for consideration here. It is correct that a suit for declaration cannot be maintained nor can a declaration of title be given on the basis of an agreement to sell. This aspect of the matter has amply been made clear by Hon 'ble Supreme Court of Pakistan in its judgment rendered in case of Muhammad Yousaf Vs. Munawar Hussain reported as 2000 S.C.M.R. - 204). But it is equally true that plaintiff has been in possession of the suit property and has constructed his house on the property in dispute where he has been living even before the date of execution of agreement to sell. Learned counsel for respondents also contended that same house has been sold to them by respondent No.2, twice. Courts of law are established for administering justice according to law and therefore technical knockout should not be given to parties when they also succeed in establishing their case on merits. Hon'ble Supreme Court of Pakistan while giving its judgment in case of Javed Iabal Vs Abdul Aziz and another reported as PLJ 2006 SC-127 has held that a suit for declaration may be converted to one for grant of specific performance and may accordingly be decided on its merits. Relevant observations of said judgments are also reproduced herein; "There can be no cavil with this proposition that mere agreement of sale would not confer any right, title or interest to immovable property on the respondents. Both the Courts, however, miserably failed to realise that the relief asked for by the plaintiffs could justifiably be moulded by converting the suit for declaration into a suit for specific performance."
In the same judgment, the Honourable Supreme Court has also held as under: - "In this case appellate Court had dismissed the suit on the ground that the same was not in proper form as the remedy of the plaintiff was to seek decree for specific performance, his Lordship authoritatively held that the suit could not have been dismissed on this technical ground and ruled that the relief of specific performance could be granted to the plaintiff if the evidence on record had established agreement of sale and performance of his part of agreement and the question of limitation is not involved.
8. Since respondent No.1 has been able to prove execution of the agreement to sell, therefore, the suit may well be converted into that M.Ishaq of specific performance and relief can accordingly be also moulded The agreement to sell had been executed on 18.01.2010 and suit in case in hand had been brought by respondent No.1 on 17.05.2010. Same was also within prescribed period of limitation and there is no hindrance in converting form of suit from declaration to that of specific performance and moulding the relief from a decree of declaration of title to one for specific performance of agreement to sell.
9. A related argument was also raised by learned counsel for petitioners at the bar that unregistered deed could not be given preference over mutation duly attested by concerned revenue officer. I am afraid, this Court would not be able to agree with learned counsel for petitioners in this respect. Section 27 of Specific Relief Act has provided in this respect as follows; - "27. Relief against parties and persons claiming under them by subsequent title.- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against,--
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c) any person claiming under a title which, though prior to the contract and known to the plaintiff; might have been displaced by the defendant;
(d) when a public company has entered into a contract and subsequently becomes amalgamated with another public company, the new company which arises out of the amalgamation;
(e) when the promoters of a public company have, before its incorporation, entered into a contract, the company: provided that the company has ratified and adopted the contract and the contract is warranted by the terms of the incorporation."
Clause 'b' of Section 27 is relevant in this respect and same may also be read along with illustration provided under said clause In this case it has come in the cross examination of Janatul Mawa while appearing as DW. 3 that subsequent purchaser i. e, Haji Bahadar was brother of her husband ( Zareen Khan ). While appearing in Court as DW.5 son of Bahadar Khan namely Muqarab Khan had admitted possession of plaintiffs on the property in dispute as well as the fact that they had constructed house thereon. In such circumstances, it can easily be discerned from record that Bahadar Khln had sufficient notice of agreement to sell, earlier entered and executed between respondent No.1 and respondent No.2. Such agreement could therefore validly be executed against petitioners who were legal heirs of Bahadar Khan and mere fact of attestation of subsequent mutation could not be deemed sufficient to defeat the agreement to sell.
10. In light of what has been discussed above, petitioners could not make out a case of illegality or irregularity sufficient for setting aside the impugned judgment and decree. Both the impugned judgments and decrees are however, modified to the effect that prayer of plaintiff is converted from declaration and perpetual injunction to the one for specific performance of contract and resultantly judgments and decrees of both the Courts below shall also be deemed modified to grant of decree for specific performance of contract. Respondent No.1 shall be at liberty to file application for execution or fulfilment of rest of formalities of the sale.
11. Instant civil revision petition is accordingly disposed of in the above terms.